Evidence on Applications

Abandonment of Applications

Dismissal on Reference or Application

27.09 Dismissal of applications for lack of substantial ground is governed by rule 6.11.

Interventions

27.10 Any person interested in a proceeding between other parties may by leave of the judge presiding over that proceeding, or by leave of the Chief Justice or a judge designated by him or her, intervene therein upon such terms and conditions and with such rights and privileges as the judge, the Chief Justice or his or her designee may determine.

Rule 28 Pre-Hearing Conferences

Application of Rule

28.01 This rule applies to pre-hearing conferences conducted under Section 625.1 of the Criminal Code.

Where Available

28.02 A pre-trial conference shall be held in the country, district or region in which the indictment has been filed, as a judge of the court may direct in accordance with this rule, and at such further dates, times and places as the pre-trial conference judge or another judge of the court may direct.

When Required

General Rule

28.03(1) A pre-trial conference shall be held in accordance with these rules within sixty (60) days of the order to stand trial on which it is based, or, where an indictment has been preferred under Section 577 of the Criminal Code, within sixty (60) days of the Attorney General’s consent or judge’s order, unless otherwise ordered by a judge of the court.

Further Pre-Trial Conferences

(2) The pre-trial conference judge or another judge of the court may direct that further pre-trial conferences be held in accordance with this rule, where and when the pre-trial conference or other judge directs, to consider any matters that would promote a fair and expeditious trial or other disposition of the case.

(3) Nothing in these rules shall be construed or interpreted to preclude the pre-trial conference or other judge of the court from conducting, with the consent of the prosecutor and counsel of record for the accused, any other informal pre-trial conferences, in addition to the conference for which s.625.1 provides, upon such terms as the judge considers appropriate.

The Pre-Trial Conference Report

Form of Report

Completion of Report

(2) Counsel of record for each accused and the prosecutor assigned to conduct the prosecution, or a prosecutor with authority to bind the prosecutor assigned to conduct the prosecution, shall complete and sign a pre-trial conference report in Form 17, and serve and file the report in accordance with this rule, unless otherwise ordered by a judge of the court, or unless the accused will be pleading guilty and has complied with subrule (4).

(3) If an accused is self-represented, she or he shall complete and sign a pre-trial conference report in Form 17, and file and serve the report in accordance with this rule, unless the accused will be pleading guilty and has complied with subrule (4).

(4) Where counsel of record for an accused or a self-represented accused knows that the accused will be pleading guilty on the indictment, counsel or the self-represented accused shall advise the prosecutor and, where required, obtain the prosecutor’s consent to the entry of the plea, at least ten (10) days before the date scheduled for the pre-trial conference, or as soon as counsel has received appropriate instructions about the plea of guilty, as the case may be.

(5) All counsel must complete their positions on each issue in Form 17, and not indicate “will advise”, “not as yet”, or words of similar effect.

(6) The prosecutor’s copy of Form 17 shall also include the following information based on the information available to the prosecutor at the time of completion of the pre-trial conference report:

(a) a brief synopsis of the allegations, including how the prosecutor intends to prove them;

(b) a statement of the prosecutor’s position on sentence if there were to be a plea of guilty prior to trial, including any requirement of a joint submission and plea on certain counts of the indictment;

and a statement of the prosecutor’s position on sentence upon conviction after trial, including whether dangerous or long-term offender proceedings may be taken in the event of conviction.

Serving and Filing of Report

(7) Unless otherwise ordered by a judge of the court or where the accused will be pleading guilty, the prosecutor must serve counsel of record for each accused, or where the accused is self-represented, the accused, not later than ten (10) days before the date scheduled for the pre-trial conference.

(8) Unless otherwise ordered by a judge of the court or where the accused will be pleading guilty, counsel of record for each accused, or the accused if self-represented shall serve the prosecutor, counsel for each co-accused and any other self-represented accused not later than five (5) days before the date scheduled for the pre-trial conference, even if the prosecutor has failed to serve and file Form 17, or otherwise failed to comply with this rule.

(9) Where the accused will be pleading guilty, the prosecutor shall file a synopsis of the allegations upon which the guilty plea will be based three (3) days prior to the date scheduled for the pre-trial conference.

(10) Where all counsel will be filing a joint pre-trial conference report, it shall be filed five (5) days before the date scheduled for the pre-trial conference.

Changes of Position

(11) If either party changes any position taken and recorded on the pre-trial conference report, the party must provide written notice of the change to the other parties and the Superior Court trial coordinator and arrange for a further pre-trial conference as soon as practicable, and serve and file any notices, records, facta, books of authorities or other materials required by these rules.

(12) Failure to comply with subrule 28.04(11) may result in any application resulting from a change in position not being heard by the trial judge.

Changes Of or To Counsel

(13) Where new counsel has been retained, an accused who was self-represented has retained counsel or an accused who was represented by counsel is no longer represented by counsel after the pre-trial conference and pre-trial conference reports have been completed, counsel or the self-represented accused shall review the pre-trial conference report filed earlier and notify all parties of any changes in position in accordance with subrule 28.04(11).

Custody and Distribution of Pre-Trial Conference Reports and Materials

(14) The pre-trial conference reports and any other materials filed for use at the pre-trial conference shall be kept in the custody of the court and not disclosed except in accordance with these rules.

(15) The pre-trial conference reports and any other materials filed for use at the pre-trial conference or prepared as a result of the pre-trial conference shall be provided to the trial judge, except that all references to the sentencing positions advanced by Crown counsel, the criminal record of the accused and any application relating to evidentiary use of the accused’s criminal record shall be deleted from the materials provided to the trial judge, kept in the custody of the court and only disclosed by order of a judge of the court.

Completion of Report to Trial Judge

(16) The pre-trial conference judge shall complete a Report to Trial Judge in Form 18-A1, which shall be forwarded to the trial judge not later than ten (10) days prior to the date on which pre-trial applications or the trial is scheduled to commence, as the case may be.

Completion of Report to Trial Coordinator

(17) The pre-trial conference judge shall complete a Report to Trial Coordinator in Form 18-B at the conclusion of the pre-trial conference and forward this form to the trial coordinator on completion.

Confirmation of Trial Readiness

(18)(a) In jurisdictions where Trial Readiness Court are held, the pre-trial conference or case management judge or another judge of the court shall direct that counsel or self-represented accused conducting a case shall appear in a trial readiness court unless all counsel and self-represented accused have not changed their position from the position described in the most recent pre-trial conference report, have complied with all filing requirements, and have completed and filed a Trial Readiness Report in Form 18-C1, not later than three (3) business days prior to the Trial Readiness Court unless otherwise directed by the Trial Coordinator.

(b) In jurisdictions where trial readiness courts are not held, the pre-trial conference or case management judge or another judge of the court shall direct that counsel and self-represented accused conducting a case shall complete and file a Trial Readiness Report in Form 18-C2 not later than ten (10) business days prior to the date on which pre-trial applications, the trial or the sittings at which the case is scheduled to be heard. If any counsel or self-represented accused has changed his or her position from the position described in the most recent pre-trial conference report, failed to comply with all filing requirements or failed to file a Trial Readiness Report, a judge of the court may direct that a further pre-trial conference or court attendance be required prior to the scheduled date.

The Hearing

General Nature of Pre-Trial Conference

28.05(1) Unless otherwise ordered by the pre-trial conference judge under rule 2.01, a pre-trial conference in a case where all parties are represented by counsel, shall be conducted in a pre-trial conference room, judges’ chambers or other suitable room in the courthouse where a full and frank discussion of the issues raised in the proceedings may take place.

(2) Where any party is not represented by counsel, the pre-trial conference shall be held in a courtroom closed to the public.

(3) A pre-trial conference held under subrule (2) shall be recorded and the proceedings not published, broadcast or transmitted in any other way, except by order of the pre-trial conference judge.

(4) No transcript of any pre-trial conference held under subrule (2) shall be ordered by anyone without notice to all parties and the written approval of the pre-trial conference judge or another judge of the court.

(5) Where a transcript has been ordered under subrule (4), no information contained in it shall be published in any document or broadcast or transmitted in any way without the approval of the pre-trial conference judge, on notice to all parties.

Attendance at Pre-Trial Conference

(6) Unless otherwise ordered by the pre-trial conference judge or a judge of the court, counsel of record for each accused, or if the accused is self-represented, the accused, and the prosecutor assigned to conduct the prosecution, or a prosecutor with authority to bind the prosecutor assigned to conduct the prosecution, shall attend the pre-trial conference and be in a position to make commitments on behalf of the party whom each represents on issues reasonably anticipated to arise from the contents of the pre-trial conference reports.

(7) Unless otherwise ordered by the pre-trial conference judge or a judge of the court an accused who is represented by counsel who has completed a Designation of Counsel in Form 18 is not required to attend the pre-trial conference.

(8) The pre-trial conference judge or another judge of the court may require that an accused represented by counsel and an investigating officer attend or be available for consultation at the pre-trial conference.

Specific Inquiries to be Made

(9) The pre-trial conference judge shall inquire about and discuss any matter that may promote a fair and expeditious hearing of the charges contained in the indictment.

(10) Without restricting the generality of subrule (9) or any other rule, the pre-trial conference judge may inquire about and discuss:

(a) the contents of the pre-trial conference reports submitted by counsel or self-represented accused;

(b) any issues that arise from the contents of the pre-trial conference reports;

(g) the nature and particulars of any pre-trial application under these rules including but not only:

(i) the necessity to make orders about the notices of application to be filed;

(ii) the setting of schedules for serving and filing notices of application, application records and other materials in support of pre-trial applications;

(iii) whether factums, other memoranda or written submissions should be required for pre-trial applications and the schedule set for their filing and service;

(iv) whether time limits should be imposed for oral arguments of pre-trial applications; and,

(v) whether evidence on pre-trial applications may be provided by Agreed Statements of Facts, excerpts of transcripts of the preliminary inquiry, affidavits, “will states” or otherwise than by the testimony of witnesses.

(h) the possibility that the parties will consent to a judge other than the trial judge hearing and deciding the pre-trial applications and incorporating any rulings made into the trial record to permit appellate review;

(i) the possibility that the prosecutor may reduce the number of counts in the indictment to facilitate jury comprehension and promote a fair, just and expeditious trial;

(j) the manner in which evidence may be presented at trial to facilitate jury comprehension;

(k) the necessity of the assistance of interpreters for any accused or witness in the proceedings;

(l) the necessity of any technological equipment to facilitate the introduction of evidence at trial or jury comprehension of the evidence;

(m) the estimated length of pre-trial applications and trial proceedings; and the advisability of fixing a date for commencement of pre-trial applications and trial proceedings.

Resolution Issues

(a) the prosecutor’s position on sentence before trial and after trial in the event of conviction, including the counts upon which pleas of guilty would be sought, the credit to be given for pre-sentence custody or release on stringent terms, any corollary orders sought upon conviction, and whether further proceedings would be taken upon conviction of any serious personal injury offence as defined in s. 752 of the Criminal Code; and

(b) the position of counsel for each accused on sentence, both before and after trial, on the basis that the accused were to instruct counsel that she or he wished to plead guilty, and where guilt was proven after trial.

(12) The pre-trial conference judge may express his or her opinion about the appropriateness of any proposed sentencing disposition based upon the circumstances disclosed at the pre-trial conference.

(c) the manner in which evidence should be introduced on pre-trial applications and the order in which the applications should be heard;

(d) requiring the prosecutor to provide a list of names who will or may be called as witnesses for the prosecution;

(e) the filing of notices of applications, application records, factums, other memoranda or written materials for pre-trial applications;

(f) the time limits to be imposed on oral argument of pre-trial applications;

(g) the appointment of a judge other than the trial judge to hear and determine pre-trial applications;

(h) arrangements for persons requiring the assistance of interpreters to meet with proposed interpreters in advance of the commencement of pre-trial applications or trial proceedings to ensure that the interpretation will be satisfactory;

(i) any arrangements required to ensure that any technological equipment necessary is available for use as required;